Judgment of the ECHR of 23 June 2020 in the case "Bulgakov v. the Russian Federation" (aplication N 20159/15).
In 2015, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to the Russian Federation.
The case successfully considered an aplication about blocking access to the entire site due to one prohibited material posted on it, and continuing to block it even after the removal of this material. The case involved a violation of article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as article 13 of the Convention in relation to article 10 of the Convention, since the Court of Appeal did not consider the merits of the applicant's complaint and whether the blocking was a necessary and proportionate measure.
CIRCUMSTANCES OF THE CASE
The website of which the applicant was the owner and administrator was blocked by a local Internet service provider in order to enforce the court decision, since the site contained an e-book previously recognized as extremist material. the blocking order was not lifted even after the book was removed from the site.
Regarding compliance with article 10 of the Convention. The contested measure represented "interference by public authorities" with the right to receive and disseminate information. as to the limits of interference, the applicant did not dispute that the e-book published on his website was prohibited. However, he complained that the courts of the respondent State decided to block the entire site because of one prohibited material and did not reverse their decision even after the removal of this material.
Since the decision of the district court concerned an electronic book, the interference was based on Part 6 of Article 10 of the Federal Law of the Russian Federation of July 27, 2006 N 149-FZ "On Information, Information Technologies and Information Protection "(hereinafter - the Law on Information) and could be considered "provided for by law". However, the district court also determined how to apply the block, ordering the blocking of prohibited content by banning access to the entire site. This blocking method, which prevented users from connecting to a site hosted at a specific digital network address (IP address), was widely used.
The complete blocking of access to the entire site was an extreme measure, comparable to banning a newspaper or television channel. This measure deliberately ignored the distinction between permitted and prohibited information that could be contained on the site, and made inaccessible a large amount of content that was not prohibited. blocking access to the ip address of the site in practice led to an expansion of the scope of the blocking order, which was applied as a result not only to the prohibited material that the order was originally aimed at, but also to a large amount of other content. Such an extension had no legal basis in the circumstances of the applicant's case. Article 10 of the Information Act allowed the authorities to take action against information that was criminally or administratively liable for dissemination, rather than the entire site. The language on blocking used by the district court was not used in any primary legislation or relevant by-laws. In their observations, the Government did not indicate any provisions of the legislation on which the method of execution of the blocking order chosen by the district court was based.
With regard to the guarantees that the legislation of the respondent State should have provided to protect individuals from the excessive and arbitrary effect of blocking, the Court noted that the legislation of the Russian Federation did not require any form of participation of the site owner (applicant) in the blocking proceedings in accordance with article 10, paragraph 6, of the Information Law. The request of the Prosecutor's Office for a decision on blocking was prepared without prior notification of the parties whose rights and interests may have been affected. The applicant was not informed of the prosecutor's request and was not given the opportunity to remove the prohibited content before the prosecutor filed the request with the court. the district court did not involve the applicant in the case and did not invite him to present his arguments, considering the issue as having to do with the prosecutor and the local internet service provider.
The participation of a representative of a local Internet service provider in the proceedings was not sufficient to make the proceedings competitive. The Internet service provider provided technology that allowed users to access millions of sites that it knew nothing about. He did not have as much detailed information about the content posted on these sites as the site owners, and also did not have the necessary legal resources to ensure effective protection of each site. The Internet service provider was not interested in the outcome of the case. The blocking orders had no consequences for its activities, they were subject to execution not only by the provider-defendant in the case, but also after the decision entered into legal force, they acquired a universal character and were subject to execution by all Russian Internet providers. the proceedings on the issue of blocking the site, conducted in the absence of the applicant, were not adversarial in nature and did not constitute a forum in which all interested parties could be heard.
In the course of the proceedings initiated by the applicant to challenge the court's decision to block the site, the courts of the respondent State did not apply the Decision of the Plenum of the Supreme Court of the Russian Federation No. 21 of 27 June 2013, according to which they were obliged to take into account the provisions of the Convention as interpreted by the European Court. They also failed to check whether the same result could have been achieved by less stringent measures, and did not conduct an assessment of the consequences of the block to ensure that it was aimed exclusively at prohibited content and was not arbitrary or excessive, including related to the way in which the measure was applied. As for the requirement of publicity, the Information Act did not provide for the decision taken on the basis of article 10, paragraph 6, of this Act to be forwarded to the owner of the relevant website. The applicant was not aware of the decision to block until he discovered that his website had been blocked.
The second aspect of the interference that the applicant complained about was the refusal to remove the block after the prohibited content was removed. The Court has already found that there were no legal grounds for blocking access to the applicant's entire website, as only one extremist material was posted on it. This finding of illegality applies all the more to the continued blocking of the site after the removal of this material.
The Court concluded that the interference resulting from the application of the procedure provided for in article 10, paragraph 6, of the Information Act had excessive and arbitrary consequences and that the legislation of the Russian Federation did not provide the applicant with the degree of protection against abuse to which he was entitled by virtue of the rule of law in a democratic society. Consequently, the interference allowed was not "provided for by law".
The case involved a violation of the requirements of article 10 of the Convention (adopted unanimously).
The Court also unanimously held that there had been a violation of article 13 of the Convention in relation to article 10 of the Convention, since the Court of Appeal had not considered the merits of the applicant's complaint and whether the blocking was a necessary and proportionate measure.
In the application of article 41 of the Convention. The Court awarded the applicant EUR 10,000 in respect of non-pecuniary damage.